ACIT, New Delhi V. M/s. ITDC Ltd, New Delhi

ITA 4494/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3559 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-07-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 26-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY AWASTHI
• Assessee Lawyers: NARESH KUMAR GULATI SR MANAGER

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4494/DEL/2009 ASSESSMENT YEAR : 2002-03 ACIT, CIR.11 (1), NEW DELHI. VS. M/S ITDC LTD., CORE 8, 6 TH FLOOR, SCOPE COMPLEX, LODHI ROAD, INSTITUTIONAL AREA, NEW DELHI. PAN : AAAC10825J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NARESH KUMAR GULATI, SR.MANAGER REVENUE BY : SHRI SANJAY AWASTHI, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF THE CIT (A) DATED 23 RD SEPTEMBER, 2009 FOR ASSESSMENT YEAR 2002-03. THE ONLY EFFECTIVE GROUND OF APPEAL TAKEN BY THE REVENUE IS WITH REGARD TO DELETION OF A SUM OF RS.64.74 LAC ON ACCOUNT OF UNLINKED CREDITOR S. 2. LD. CIT (A) HAS DELETED THE SAID ADDITION ON THE GROUND THAT THE ADDITION IS MADE ON THE BASIS OF ASSESSMENT ORDER FOR ASSESSMEN T YEAR 2003-04 WHICH WAS DELETED VIDE HIS ORDER DATED 23 RD AUGUST, 2006. THE DEPARTMENT HAD SOUGHT PERMISSION TO FILE APPEAL AGAINST THE SAID ORDER OF CIT (A) VIDE WHICH SIMILAR ADDITION WAS DELETED AND THE PERMISSION TO FILE FUR THER APPEAL WAS NOT ACCORDED TO THE REVENUE AND, IN THIS MANNER, THE ADDITION WA S DELETED BY THE CIT (A). ITA NO.4494/DEL/2009 2 3. AT THE TIME OF HEARING IT WAS FOUND THAT THE DEP ARTMENT HAS NOT PLACED ON RECORD THE APPROVAL OF COD TO CONTEST THE PRESENT A PPEAL AS THE RESPONDENT IN THE PRESENT CASE IS A GOVT. OF INDIA UNDERTAKING. EARLIER ALSO ON 27 TH JANUARY, 2010 THE DEPARTMENT WAS REQUIRED TO SUBMIT THE APPR OVAL FROM COD WHICH TILL DATE HAS NOT BEEN FURNISHED. ACCORDING TO THE DECI SION OF HONBLE SUPREME COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION & ANOTHER V. COMMISSIONER OF CENTRAL EXCISE, 104 CTR SC 31 IT IS OBLIGATORY O N EVERY COURT AND EVERY TRIBUNAL WHERE DISPUTE BETWEEN PUBLIC SECTOR UNDERT AKING AND DEPARTMENT IS RAISED TO DEMAND A CLEARANCE FROM COMMITTEE IN CASE IT HAS NOT BEEN SO PLEADED AND IN THE ABSENCE OF CLEARANCE, THE PROCEE DINGS WOULD NOT BE PROCEEDED WITH. IT WILL BE RELEVANT TO REPRODUCE FOLLOWING OBSERVATIONS OF THEIR LORDSHIPS FROM THE SAID DECISION:- IT SHALL BE THE OBLIGATION OF EVERY COURT AND EVER Y TRIBUNAL WHERE SUCH A DISPUTE IS RAISED HEREAFTER TO DEMAND A CLEARANCE F ROM THE COMMITTEE IN CASE IT HAS NOT BEEN SO PLEADED AND IN THE ABSENCE OF THE CLEARANCE, THE PROCEEDINGS WOULD NOT BE PROCEEDED WITH. 4. THE STAND WAS REITERATED BY THE HONBLE SUPREME COURT IN THE CASE OF MAHANAGAR TELEPHONE NIGAM LTD. V. CHAIRMAN, CBDT, [ 2004] 267 ITR 647(SC) AS PER THE FOLLOWING OBSERVATIONS:- IN THIS CASE, THIS IS ABSOLUTELY WHAT HAS HAPPENED . THE APPELLANTS WANTED TO APPROACH THE COURT ONLY AGAINST A SHOW CA USE NOTICE. IT IS SETTLED LAW THAT AGAINST A SHOW CAUSE NOTICE LITIGA TION SHOULD NOT BE ENCOURAGED. THE DECISION OF THE HIGH POWERED COMM ITTEE, SET OUT HEREINABOVE, MERELY EMPHASIZES THE WELL-SETTLED POS ITION. IT IS AN EMINENTLY FAIR AND CORRECT DECISION. THE PURPOSE OF THE DECISION WAS TO PREVENT FRIVOLOUS LITIGATION. NO RIGHT OF THE APP ELLANTS IS BEING AFFECTED. IT HAS BEEN CLARIFIED THAT THE APPELLANTS COULD MOVE A COURT OF LAW AGAINST AN APPEALABLE ORDER. BY NOT MAINTAINING DISCIPLIN E AND ABIDING BY THE DECISION, THE APPELLANTS HAVE WASTED PUBLIC MONEY A ND TIME OF THE COURTS. THE CLARIFICATORY ORDER, RELIED UPON BY MR. ANDHYAR UJINA, CLARIFIES IN PARA 5 AS TO WHAT IS TO HAPPEN IF CLEARANCE IS NOT GIVEN B Y THE COMMITTEE. IT IS SET OUT THAT, IN THE ABSENCE OF THE CLEARANCE, THE PROC EEDINGS MUST NOT BE PROCEEDED WITH. THIS POSITION IS FURTHER CLARIFIE D IN CHIEF CONSERVATOR OF FORESTS CASE WHERE AGAIN THIS COURT HAS HELD THAT THE DECISION TAKEN BY ITA NO.4494/DEL/2009 3 SUCH A COMMITTEE IS BINDING ON ALL DEPARTMENTS CONC ERNED AND IT IS THE STAND OF THE GOVERNMENT. IN VIEW OF THIS SETTLED LAW, WHICH IS BINDING ON US , WE HOLD THAT, AS CLEARANCE HAS NOT BEEN GIVEN TO THE APPELLANTS, THE SE PROCEEDINGS CANNOT BE PROCEEDED WITH. THE HIGH COURT WAS WRONG IN DE ALING WITH THE MERITS OF THE MATTER. WE, THEREFORE, DO NOT EXAMINE WHET HER THE HIGH COURT WAS RIGHT ON MERITS. THE APPEAL ACCORDINGLY STANDS DI SPOSED OF WITH NO ORDER AS TO COSTS. 5. NO SUCH APPROVAL FROM COD HAS BEEN FURNISHED BY THE DEPARTMENT, THEREFORE, IN THE ABSENCE OF CLEARANCE FROM COD THE APPEAL FILED BY THE DEPARTMENT CANNOT BE PROCEEDED WITH. AS SUCH, THI S APPEAL IS DISMISSED FOR WANT OF CLEARANCE FROM COD. WE MAY OBSERVE THAT I F LATER ON IN CASE THE DEPARTMENT IS ABLE TO OBTAIN CLEARANCE FROM COD IT MAY APPROACH THE TRIBUNAL FOR REVIVAL OF THIS APPEAL. WITH THESE OBSERVATION S THE APPEAL IS DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. . THE ORDER PRONOUNCED IN THE OPEN COURT ON 16.07.20 10. SD/- SD/- [B.C. MEENA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 16 TH JULY, 2010. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES